Datatreasury Corporation v. Wells Fargo & Company et al

Filing 82

MOTION to Dismiss Motion Joining in Co-Defendants' Motion to Dismiss by The Clearing House Payments Company, LLC. (McGee, Preston) Additional attachment(s) added on 6/2/2006 (sm, ).

Datatreasury Corporation v. Wells Fargo & Company et al

Doc. 82

Case 2:06-cv-00072-DF-CMC

Document 82

Filed 06/01/2006

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION ------------------------------ x DATATREASURY CORP. : : Plaintiff, : No. 2-06CV-72 v. : : MOTION TO DISMISS WELLS FARGO & CO., et al., : : : Defendant. ------------------------------ x MOTION OF DEFENDANT THE CLEARING HOUSE PAYMENTS COMPANY L.L.C. JOINING IN CO-DEFENDANTS' MOTION TO DISMISS COMES NOW Defendant The Clearing House Payments Company L.L.C. ("TCH"), to respectfully submit the instant motion joining in the Motion to Dismiss filed by co-defendants Bank of America Corporation, et al, et al (the "Motion to Dismiss"), subject to the limitations set forth below. In support of its motion, TCH states as follows. On March 28, 2006, plaintiff DataTreasury Corporation ("DT") filed its First Amended Complaint in this matter (the "Complaint"). The Complaint names fiftysix separate defendants. DT's purported allegations of infringement fall woefully short of the requisite pleading standards required by Rule 8 of the Federal Rules of Civil Procedure. For the reasons set forth in the Motion to Dismiss, TCH believes that the First Amended Complaint is fatally flawed and should be dismissed by this Court. TCH joins in the Motion to Dismiss rather than filing its own motion separately to minimize the burden on this Court, which might otherwise be faced with fifty-six separate motions directed at DT's Complaint.

Dockets.Justia.com

Case 2:06-cv-00072-DF-CMC

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Filed 06/01/2006

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TCH joins the Motion to Dismiss subject to the following qualifications. The Complaint attempts to allege that TCH infringes the following patents: U.S. Patent Nos. 5,265,007; 5,717,868; 5,910,988; and 6,032,137.1 TCH joins the Motion to Dismiss as that Motion is directed at DT's insufficient allegations regarding the Randle Patents. With respect to the Ballard Patents, TCH has already answered those allegations in the case DT filed against TCH on March 4, 2004 (the "Initial Litigation"). In addition, this Court has, by order dated May 24, 2006, consolidated the Initial Litigation with this case. In its Complaint, DT also asserts claims against Small Value Payments Company ("SVPCo"). However, as TCH has represented to this Court and to DT, SVPCo no longer exists, having merged into TCH as of July 2004. TCH has been and is the successor-in-interest to SVPCo. Accordingly, SVPCo does not exist as a legal entity and is not able to respond separately to the Complaint.2

U.S. Patent Nos. 5,910,988 and 6,032,137 will be referred to collectively as the "Ballard Patents." U.S. Patent Nos. 5,265,007 and 5,717,868 will be referred to collectively as the "Randle Patents."
1

TCH has been conferring with DT to reach an agreement whereby DT will voluntarily dismiss SVPCo from this lawsuit.
2

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Case 2:06-cv-00072-DF-CMC

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In light of the foregoing, and subject to the qualifications set forth herein, TCH respectfully requests that this Court grant the Motion to Dismiss and such other and further relief this Court deems necessary. Dated: June 1, 2006 Respectfully submitted,

_________________________________ Preston W. McGee State Bar No. 13620600 Flowers Davis, P.L.L.C. 1021 ESE Loop 323, Suite 200 Tyler, Texas 75701 [phone] [e-mail] Of Counsel: James H. Carter James T. Williams SULLIVAN & CROMWELL LLP 125 Broad Street New York, New York 10004 [phone] Lawrence F. Scinto Ronald A. Clayton FITZPATRICK, CELLA, HARPER & SCINTO 30 Rockefeller Plaza New York, New York 10112-3801 [phone] Attorneys for Defendant The Clearing House Payments Company L.L.C.

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Case 2:06-cv-00072-DF-CMC

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CERTIFICATE OF SERVICE I hereby certify that the above and foregoing instrument was served upon all counsel of record in the above entitled and numbered cause on this the 1st day of June, 2006.

X

Via ECF Rod A. Cooper The Cooper Law Firm 545 E. John Carpenter Frwy. Ste. 1460 Irving, Texas 75062 [e-mail] [e-mail] [e-mail] [e-mail]

Ed Hohn D. Neil Smith Nix Patterson & Roach, L.L.P. 205 Linda Drive Daingerfield, Texas 75638 [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] [e-mail] Anthony Bruster Brady Paddock Benjamin King Nix Patterson & Roach, L.L.P. 2900 St. Michael Dr., 5th floor Texarkana, Texas 75503 [e-mail] [e-mail] [e-mail] Joe Kendall Karl Rupp Provost Umphrey, L.L.P. 3232 McKinney, Ste. 700 Dallas, Texas 75204 [e-mail] [e-mail]

Eric Albritton Albritton Law Firm 109 West Tyler Street Longview, Texas 75601 [e-mail]

Johnny Ward The Law Office of T. John Ward, Jr. P.O. Box 1231 Longview, Texas 75601 [e-mail]

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Case 2:06-cv-00072-DF-CMC

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Edward Chin 11602 Island Breeze Street Pearland, Texas 77584 [e-mail]

___________________________________ Preston W. McGee

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